Gracious Rutendo Chirenda N.O. v Shelton Chibanda and Four Others & Catering Industry Pension Fund

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/21/22
HARARE, 06 OCTOBER, 2021
CASE NO. LC/H/61/21
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/21/22

HARARE, 06 OCTOBER, 2021		               CASE NO. LC/H/61/21

AND 28 JANUARY, 2022

In the matter between:-

GRACIOUS RUTENDO CHIRENDA N.O.				Applicant

Versus

SHELTON CHIBANDA AND FOUR OTHERS				1st Respondent

CATERING INDUSTRY PENSION FUND				2nd Respondent

Before The Honourable L. Hove, Judge:

For Applicant:	In Person

For 1st Respondent:	In Person

For 2nd Respondent:	M. A. Kalira (Legal Practitioner)

This is an application for the confirmation of draft ruling in terms of section 93 of the Labour Act [Chapter 28:01] (the Act).

At the hearing of this matter, two preliminary points were raised by the second respondent who is the employer party. I use the term employer party loosely bearing in mind that the second respondent disputes that it employed the 1st Respondents.

The 2nd respondent’s first point in limine challenged the citation of the employees as Shelton Chibanda & four others. The objection was stated in the 2nd respondent’s heads of argument as follows;

“The applicant (Labour officer) has cited a non-legal persona. At law there is no person called Shelton Chibanda and four others”.

The 1st respondents are natural persons. There is infact a natural person by the name Shelton Chibanda. He can be sued and he can also sue as a natural person. The application is not fatally defective as it sights a natural person. The applicant included other natural person by stating the following words;

“and four others”. These four others are easily identifiable from the record as Roseline Hwata, Carvern Muzondo, Douglas Zingara and Rangarirai Because. These four filed their supporting affidavits in response to the application in casu.

The employer party has challenged the citation on the basis of the authority in CT Bolts (Pvt) Ltd v Workers committee SC 16/2012. In that case the respondent was cited as workers committee, which entity was neither a natural person or a legal persona.  It was on that basis that the court ruled that the proceedings were a nullity.

The case can be distinguished from the case in casu in that “Workers Committee” was neither a legal entity nor a natural person. It cannot be argued in casu, that Shelton Chibanda and four others are neither a legal persona or a natural person because they are all natural persons who are easily identifiable from the record.

Similarly, in JDM Agro – consult and Marketing (Pvt) Ltd v Editer of the Herald Newspaper and another HH 61/2007, the matter was also judged as a nullity because instead of citing a legal entity by the name Zimbabwe Newspapers (1980) Limited which is a registered company duly incorporated under the laws of this country, the entity was wrongly cited as “The Herald Newspaper” needless to say, The Herald Newspaper was neither a natural person nor a legal persona. In other words the 2nd respondent was non existent.

In Gariya Safaris (Pvt) Ltd v Van Wyk the court stated that;

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names in the summons as being those of the defendant the summons is null and void. ab initio”.

In this case, there is a natural person answering to the name Shelton Chibanda, and there are four other natural persons so the process cannot be null and void.

The first point raised in limine is thus without merit.

The second point raised in limine was that;

The 2nd respondents’ second preliminary point that the applicant violated its right to be heard is again without merit. I say so because in terms of the Act, the Labour Officer has no obligation to hear the parties after issuing a certificate of no settlement, he or she can proceed to do a draft ruling. See in this regard the case of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CCZ 6/20. The Labour officer only tries to help the parties to settle the dispute through conciliation and when this fails, then he or she issues a certificate of no settlement and makes a draft ruling. Once a draft ruling is made, the matter is then referred for adjudicating before the Labour court. The honourable Chief Justice, commenting on the powers of Labour officers stated in the Isoquant case (supra) that;

“He or she is required to make a “Draft ruling” on the merits of the dispute as gathered from the conciliation process and after issuing a certificate of no settlement”.

The “draft ruling” is not a determination. The Labour officer is not required to engage in an adjudicative role. His responsibility in terms of the Act, is to conciliate the parties. This “draft ruling” cannot be enforced. Parties cannot seek a review or appeal against the ruling at this stage. The matter remains open.

It is my view therefore, that one cannot allege that he was not heard by the Labour officer after engaging in the conciliation process and submitting their side of the story to the Labour officer which the Labour officer uses to make a draft ruling. The Role of the Labour officer after making the draft ruling is not to call the parties for a hearing, if it were so, then he or she would come up with a determination and not a “draft ruling”. Further, if he was required to conduct a hearing, then the duty to hear both parties would arise. The Labour officer is however not engaged in a hearing but is just making a draft ruling from the information he would have gathered during the conciliation process.

It is therefore my considered view that both preliminary points raised are without merit and must be dismissed.

I therefore make the following order;

1.	The two preliminary points be and are hereby dismissed.

2.	The Registrar shall set the matter down for continuation on the merits.